The sub-contractor's surveyor telephoned the person named in the contract to act as adjudicator and that person indicated that he would not be able to accept any appointment for the next few weeks. The surveyor then served a notice of adjudication and stated in his covering letter that the contractual nominating body would be requested to nominate an adjudicator. The contractor disagreed. However, the nominating body nominated the person who in the event acted as adjudicator.

The sub-contractor brought court proceedings to enforce the decision in its favour. The contractor opposed enforcement on the ground that the sub-contractor had failed to comply with the procedure for the appointment of an adjudicator in the Scheme for Construction Contracts. Paragraph 2(1) provided that (a) following the giving of a notice of adjudication, the referring party was to the request the person (if any) specified in the contract to act as adjudicator and (b) if no person was named or the person named had already indicated that he was unwilling or unable to act and the contract provided for a specified nominating body to select a person, the referring party was to request the nominating body to select a person.

Judge Havery agreed with the contractor and held that the decision had therefore been made without jurisdiction. It was sufficient that paragraph 2 had not been complied with without any need for the contractor for establish that it had suffered actual prejudice. What was intended by paragraph 2 was that the notice of adjudication came first, the referring party was then to request the person specified in the contract in writing to act as adjudicator unless he had already indicated that he was unwilling or unable to act, the person specified in the contract then had to indicate within two days whether or not he was willing to act and if the person specified in the contract indicated that he was not so willing, the referring party could proceed to request the nominating body to select a person provided that that indication was made to all parties. This had not happened.

Advice Note

A claimant cannot unilaterally ascertain the (un)availability of the person named in the contract to act as adjudicator without first having served its notice of adjudication.